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Holmes v. State8/31/2005
while Officer Ward indicated he smelled an odor of alcohol during the stop, there was no testimony as to the origin of the smell. Mr. Holmes submits that the odor could have come from the other passenger or a spilled drink in the automobile.
Mr. Holmes maintains that, while there was testimony that he failed sobriety tests, Officer Ward failed to testify as to the significance of failing the tests. He further asserts that Officer Ward failed to give the opinion that he was intoxicated, and gave no testimony about slurred speech or unsteadiness on his feet other than failing the sobriety tests. On the evening at issue, Mr. Holmes only admitted to having a couple of beers.
Mr. Holmes argues that the evidence in the record is sparse, and left the trier of fact to speculate as to whether he was influenced to a degree where his motor skills and judgment were substantially altered and resulted in a clear and substantial danger of physical injury or death to himself or others. Thus, he contends that his DWI conviction must be reversed.
Mr. Holmes's challenge to the sufficiency of the evidence is without merit. The observations of police officers with regard to the smell of alcohol and actions consistent with intoxication can constitute competent evidence to support a DWI charge. Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (2003). In this case Officer Ward smelled alcohol and, contrary to Mr. Holmes's argument, Officer Ward indicated it was emanating from Mr. Holmes because he testified, "And in talking to him, that's when I noticed the odor of intoxicants." Moreover, Officer Ward testified that Mr. Holmes refused to take a blood-alcohol test, which is admissible on the issue of intoxication and may indicate the defendant's fear of the results of the test and consciousness of guilt. See Peterson v. State, supra.
In addition to the above factors, the State offered proof that Mr. Holmes failed three sobriety tests, and that this provided the suspicion by Officer Ward that he was intoxicated. In Felgate v. State, 63 Ark. App. 76, 974 S.W.2d 479 (1998), we held that the failure of three sobriety tests was evidence of intoxication, notwithstanding the fact that the arresting officer could not remember the specifics about the tests and did not specifically testify that he thought the appellant was intoxicated. In affirming the appellant's conviction in Felgate v. State, supra, we also relied on the fact that the appellant admitted he had consumed alcohol (one mixed drink) on the night of his arrest. Similarly, in the instant case, Mr. Holmes provided inculpatory evidence by his admission to the police that he had been drinking.
The evidence viewed in the light most favorable to the State showed that Mr. Holmes smelled strongly of alcohol; failed three sobriety tests; refused to take a Breathalyzer test; and admitted he had been drinking beer. We hold that this amounted to substantial evidence to support the trial court's finding that Mr. Holmes was intoxicated and committed the offense of driving while intoxicated.
Affirmed.
Pittman, C.J., and Vaught, J., agree.
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